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Appointing authority urged to permit employee terminated for cause to apply for a vested interest retirement

Appointing authority urged to permit employee terminated for cause to apply for a vested interest retirement

The police commissioner terminated a police officer after he was found guilty of official misconduct and violations of the Police Department Patrol Guide.

The Appellate Division annulled the commissioner’s action after dismissing certain specifications and remanded the matter the commissioner “for a determination of a new penalty on the remaining specifications.” Although the court found that there was no substantial evidence to prove the specifications that it had dismissed, it, in contrast, said that the “remaining specifications” were supported by substantial evidence.

However, the Appellate Division also said that “If the Commissioner sees fit to adhere to the penalty of termination,” the police officer "should be permitted to apply for a vested interest retirement."

Although the court acknowledged that the commissioner's penalty determination “is deserving of due deference,” it explained that it was also mindful of the fact that courts "cannot operate merely as a rubber stamp of the administrative determination if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.”

Characterizing the police officer’s misconduct “an aberration from his otherwise exemplary career over approximately two decades,” and that termination would work an extreme hardship on the officer’s innocent family, the Appellate Division, Judge Sweeny dissenting, concluded that “[u]nder these circumstances, even in light of the repellent behavior exhibited by [the officer], the deprivation of his retirement benefits is shocking to one's sense of fairness, citing the Pell Doctrine [Matter of Pell, 34 NY2d at 233].

N.B. The Administrative Code of the City of New York provides that an employee may forfeit his or her retirement allowance under certain circumstances. For example, Section 13-173.1 of the Administrative Code requires a sanitation member to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the member is not "in service" on that date, he or she forfeits his or her retirement benefits.The Court of Appeals addressed the provisions of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.